West Coast Community Builders, Inc. v. Devicente & Mills Architecture, Inc., et al

"The Court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading." (Code Civ. Proc., Sec. 436.)

"The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the Court is required to take judicial notice." (Code Civ. Proc., Sec. 437, subd. (a).)

In addition to the demurrer, Plaintiff also moves to strike the twenty-fifth and twenty-sixth affirmative defenses. Defendants' twenty-fifth affirmative defense is: "Plaintiff's complaint fails to state facts sufficient to constitute a cause of action against Defendants that would support an award of punitive damages." (FAA, P. 25.)

Defendants do not oppose striking the twenty-fifth affirmative defense. (Opposition, at p. 3.) The motion will therefore be granted.

Defendants' twenty-sixth affirmative defense is: "Plaintiff is not entitled to recover punitive or exemplary damages from Defendants on the grounds that any award of punitive or exemplary damages would violate Defendants' constitutional rights under the Due Process Clauses of the Fifth and Fourteenth Amendments of the United States Constitution." (FAA, P. 26.)

Plaintiff argues that this affirmative defense cannot be evaluated until after a verdict is returned, that this issue is irrelevant at the pleading stage, and that Defendants' right to argue this issue is otherwise fully preserved. (Motion, at p. 5.)

Defendants argue that it raises a legitimate issue and is not improper. The fact that an issue of damages cannot be determined until and unless there is such an award does not make an affirmative defense irrelevant. As Plaintiff concedes, Defendants have the right to make the arguments suggested by this affirmative defense at an appropriate time regardless of whether this affirmative defense is pleaded. The inclusion of the affirmative defense thus at most is superfluous. But the affirmative defense has the benefit of creating a record of Defendants' assertion of these issues while not, in fact, burdening the record except by adding a few extra lines to the FAA. The motion to strike this affirmative defense will be denied.

Tentative Ruling: West Coast Community Builders, Inc. v. Devicente & Mills Architecture, Inc., et al Tentative Ruling: West Coast Community Builders, Inc. v. Devicente & Mills Architecture, Inc., et al Case Number

Case Type Civil Law & Motion Hearing Date / Time Wed, 05/27/2026 - 10:00 Nature of Proceedings Motion of Defendants Devicente & Mills Architecture, Inc. and Eduardo deVicente to Strike Portions of Plaintiff's Complaint Tentative Ruling For Plaintiff West Coast Community Builders, Inc.: Timothy G. Scanlon, Young Wooldridge LLP For Defendants Devicente & Mills Architecture, Inc. and Eduardo deVicente: John T. Lupton, Miller Waxler LLP

RULING For the reasons set forth herein, the motion to strike portions of Plaintiff's complaint is granted. This ruling does not prevent Plaintiff from moving to amend the complaint to allege sufficient grounds for recovery of attorneys' fees, or prevent Plaintiff from potentially recovering attorneys' fees, as costs, should Plaintiff prevail in the action and have a legally supported basis for recovery of attorneys' fees. The trial date set for 6/30/26 is confirmed.

Background

This action commenced on December 31, 2025, by the filing of the complaint by Plaintiff West Coast Community Builders, Inc., against Defendants Devicente & Mills Architecture, Inc., dba DMHA Architecture (DMHA) and Eduardo deVicente (collectively "Defendants") for breach of written contract and professional negligence.

As alleged in the complaint: On April 1, 2021, Plaintiff and DMHA entered into a written Standard Form of Agreement Between Design-Builder and Architect (the "agreement"). (Compl., P. 10 & Exh. A.) Pursuant to the agreement, DMHA agreed to provide Plaintiff with architectural services for the development located at 219 E. Haley Street, Santa Barbara, including design development through the construction phase of the project (the "project"). (Compl., P. 11.)

Pursuant to the agreement, DMHA agreed to, among other things, (1) provide design development through the construction phase of the project, (2) comply with design and construction milestones for the project, (3) perform its services with the professional skill and care ordinarily provided by architects practicing in the same or similar locality under the same or similar circumstances, (4) perform services as expeditiously as is consistent with such professional skill and care and the orderly progress of the project, (5) perform its services in the sole interest, and for the exclusive benefit, of Plaintiff, (6) carry professional liability insurance with policy limits of not less than three million dollars per claim and three million dollars in the aggregate, (7) review laws, codes, and regulations applicable to DMHA's services and respond in the design of DMHA's work to requirements imposed by governmental authorities having jurisdiction over the project, (8) assist Plaintiff with the evaluation of alterative materials, building system and equipment in developing the design of the project, (9) review and respond to requests for information relating to the project, (10) review and approve (or take other appropriate action) on project submittals, (11) review and prepare proposed change orders and construction change directives, and (12) any additional services deemed appropriate under the agreement. (Compl., P. 13.)

Within the last year, and on or after January 7, 2025, DMHA materially breached the agreement by failing to perform each of those services with the promised professional skill and care ordinarily provided by architects practicing in the same or similar locality under the same or similar circumstances. (Compl., P. 14.) Specifically, within the last year, Plaintiff discovered design deficiencies impacting fire and life safety issues, accessibility issues, waterproofing, drainage, and assemblies issues. (Ibid.)

DMHA's deficiencies and omissions in breach of the Agreement resulted in additional design-related costs and delays to the project, including: (l) fire treated lumber, (2) window ratings, (3) slider doors, (4) drag struts, (5) stair stringers, (6) door ratings/sizes, (7) seismic joints, (8) ceiling joists, (9) exhaust shafts, (10) stairs ratings, (11) panels, (12) heat pumps, (13) fire wall ratings, (14) assembly changes at mechanical shaft, (15) louver unit additions, (16) elevator shaft drywall, (17) desglass, (18) additional framing, (19) trash chute caps, and (20) cabinet ADA issues. (Compl., P. 15.) The project is not yet complete. (Ibid.)

Under the terms of the agreement, Plaintiff has been damaged, as a result of DMHA's breaches, in an amount no less than $873,083.08. (Compl., P. 17.) A review of the attached agreement shows that Eduardo deVicente is the president and CEO of DMHA.

Defendants now move to strike the portions of Plaintiff's complaint that seek attorneys' fees. Specifically: Paragraph 20, page 5, lines 10-11: "Pursuant to Article 12 of the Agreement, Plaintiff is entitled to the recovery of attorneys' fees and costs in the collection of the outstanding amount due." Paragraph 27, page 7, lines 1-2: "Pursuant to Article 12 of the Agreement, Plaintiff is entitled to the recovery of attorneys' fees and costs in the collection of the outstanding amount due." Page 7, line 8: "including attorneys' fees as permitted by contract and statute." Plaintiff opposes the motion.

Analysis

"The Court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: "(a) Strike out any irrelevant, false, or improper matter inserted in any pleading. "(b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a Court rule, or an order of the Court." (Code Civ. Proc., Sec. 436.)

Defendants argue that the request for attorneys' fees is improper and not drawn in conformity with California law. " 'The appropriate procedural device for challenging a portion of a cause of action seeking an improper remedy is a motion to strike.' " [Citation.]" (Brown v. Ralphs Grocery Co. (2018) 28 Cal.App.5th 824, 844.)

"The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the Court is required to take judicial notice." (Code Civ. Proc., Sec. 437, subd. (a).)

"California follows the American rule regarding attorney's fees. Under that rule, litigants are ordinarily responsible for paying their own attorney's fees, unless a statute or agreement provides otherwise. [Citation.]" (Travis v. Brand (2023) 14 Cal.5th 411, 417.) Attorney's fees are allowed as costs when authorized by contract, statute, or law. (Code Civ. Proc., P. 1033.5, subd. (a)(10).)

"Except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided." (Code Civ. Proc., Sec. 1021.)

"[A] party seeking to recover attorneys' fees as the prevailing party in an action on a contract providing for such fees must make an election whether to plead and prove such fees as damages under the contract or claim them as costs of suit. In other words the party must follow either procedure but not both." (Herzog v. Riel (1979) 99 Cal.App.3d Supp. 12, 15.)

Civil Code, section 1717(a) provides, in pertinent part: "In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs."

"Section 1717 and its reciprocity principles, however, have " 'limited application. [They] cover[] only contract actions, where the theory of the case is breach of contract, and where the contract sued upon itself specifically provides for an award of attorney fees incurred to enforce that contract. [Section 1717's] only effect is to make an otherwise unilateral right to attorney fees reciprocally binding upon all parties to actions to enforce the contract.' " [Citation.]" (Brown Bark III, L.P. v. Haver (2013) 219 Cal.App.4th 809, 820.)

The portion of the agreement relied upon by Plaintiff for recovery of attorney fees provides: "In the event of default in the payment of any amount due, and if this account is placed in the hands of an agency or attorney for collection or legal action, client will pay an additional charge equal to the cost of collection including agency and attorney fees and Court costs incurred and permitted by laws governing these transactions. The terms of this agreement/proposal may be modified if not signed within thirty days of the date first written above. Mutual as to both parties." (Agreement, Art. 12, p. 25.)

Defendants argue that the attorneys' fees provision does not apply to this action because it is not a collection action. Plaintiff argues that Defendants are basing their argument on an unduly narrow reading of the agreement and a premature factual determination regarding whether there are sums presently due under the contract.

Reading the entirety of the complaint, as well as the agreement, the Court agrees with Defendants. The complaint itself is comprised of allegations that Defendants breached the contract in the manner set forth in paragraphs 13 through 15. There are no allegations of a "default in the payment of any amount due" or that an account was placed in the hands of any agency or attorney for collection. The provision relied upon by Plaintiff simply does not apply to this action as the complaint is drafted.

The motion to strike will be granted. However, Plaintiff will not be precluded from either moving to amend the complaint if discovery reveals a basis for recovery of attorneys' fees, or, moving for attorneys' fees, as costs, should Plaintiff prevail in the matter and there are legally supported grounds for doing so.

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